Ohio Case of Online Ballot Tool for Visually Impaired Resumes

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By Alexis Kramer

An appellate court, finding no proof that providing an online voting tool for blind voters in Ohio is an unreasonable accommodation under federal law, reversed a lower court’s ruling Nov. 13.

The decision reopens the question of whether a state’s failure to give voters an online alternative to paper absentee ballots violates the Americans With Disabilities Act. The case returns to the U.S. District Court for the Southern District of Ohio for further proceedings.

The National Federation of the Blind and three blind, registered voters alleged that Ohio Secretary of State Jon Husted violated Title II of the ADA by failing to provide online absentee ballot technology. The district court agreed with Husted that providing the technology would fundamentally alter the state’s voting system because it hadn’t been used in a prior Ohio election, nor had it been certified in accordance with state law.

The U.S. Court of Appeals for the Sixth Circuit, however, said the lower court based its ruling on mere allegations that the ballot-marking tool would be unreasonable ( Hindel v. Husted , 6th Cir., No. 17-3207, 11/13/17 ). “Without proof that the proposed ADA accommodation is unreasonable or incompatible with Ohio’s election system, defendant’s affirmative defense based on an allegation, alone, is insufficient,” the Sixth Circuit said.

The Secretary of State has “worked to ensure that all Ohioans—regardless of their physical abilities—are able to vote in an accessible and secure way,” Sam Rossi, Husted’s spokesman, told Bloomberg Law Nov. 14. Rossi said the court must clarify how the state can accommodate disabled voters “without jeopardizing the current process for all other voters.”

Jessica Weber, counsel for the plaintiffs and a partner at Brown Goldstein Levy in Baltimore, Md., told Bloomberg Law that the Sixth Circuit recognizes Ohio can’t deny blind voters the opportunity to vote absentee when the technology to allow it “is available, but simply has not yet been certified.”

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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